‘I’m so scared he’ll hit me again and don’t know what to do. I’ve had enough and want to leave him. I’ve been living in London for the past 13 months on a spousal visa and have no income of my own. What can I do?’
Statements like the above are not unusual for a family law solicitor. We will regularly come across cases where a spouse, typically the wife, is subject to a spousal visa, ie their immigration status in the UK is entirely dependent upon their spouse’s right to remain in the UK or citizenship.
For the purposes of this article and for ease we shall refer to the victim of the domestic abuse and the applicant as being the wife.
What can a family solicitor do to assist?
If the wife’s life is at risk she should call the police immediately on 999.
If the wife has suffered domestic abuse and / or is at imminent risk of the same, the wife can obtain urgent protective orders in the form of an injunction and if appropriate, protective orders for any children of the family.
There are two types of injunction orders: a non-molestation and occupation order. An application can be made on an urgent basis if the circumstances justify the relevant criteria.
An application can be made, and an order obtained, without notice to the husband. This is done when there is a real risk that if the husband was aware that the wife was applying to the court for protection this would result in the wife being at further risk of harm.
If an application is made without notice the order will usually last for a short specified time. The court is likely to list a return date hearing requesting that the husband attend court. The judge will then consider whether the order should be discharged, extended, for how long and if there should be a further hearing if the husband disputes the allegations being made. Any supporting evidence of the abuse should be submitted. This could include a letter from the wife’s GP, a crime reference number or photographs of any injuries sustained.
If you do obtain an order without notice to the husband, the husband will not be bound by the terms of the same until he has been personally served with the order. Once the husband is served with the court order a copy should also be lodged with your local police station.
A non-molestation order will protect the wife and any relevant children. The order will prohibit the husband from harassing, pestering, intimidating, threatening or using actual violence against the wife or a child. The order can also forbid contact by telephone, email, social media or in person. It can also prohibit the husband instructing anyone else from doing so.
The other form of protection is an occupation order. An occupation order will result in either:
Enforcing the wife’s entitlement to remain in her home as against her husband.
Allowing the wife to return and remain in her home or part of it.
Regulate how the home is occupied either by one of the parties or both. This could apply to say when one can enter the kitchen, living room or the main bedroom.
It can also prohibit, suspend or restrict the husband’s right to occupy the home. He might be ordered to leave the home immediately upon being served with the order or within a specified time. He can also be excluded from a defined area in which the home is situated.
The factors the court will take into account when deciding whether to make an occupation order are as follows:
The housing needs and housing resources of the parties (and children);
The financial resources of each of the parties;
The effect of any order, or failure to make an order, on the health, safety or well-being of the parties (and children);
The conduct of the parties.
When the court has an application for an occupation order before it, the court will also consider the “balance of harm” test. This means that if the court considers that the wife or any child is likely to suffer significant harm attributable to the conduct of the husband if an occupation order is not granted, then the court shall make such an order unless it appears to the court that:
The husband or any child is likely to suffer significant harm if the order is made;
The harm likely to be suffered by the husband or child is as great as or greater than the harm attributable to the conduct of the husband which is likely to be suffered by the wife or child if the order is not made.
If an occupation order is made, the court can order the husband to continue to pay the rent, mortgage, utility bills and council tax as and when they become due for a specified period of time. A power of arrest can be attached to the occupation order.
Taking on board any immigration advice given, the wife can consider petitioning for judicial separation or divorce. The original marriage certificate, and certified translation if appropriate, will be required. If it is not possible to locate the original marriage certificate because of the urgency in issuing proceedings, permission can be requested from the court to issue without lodging the original certificate.
Upon the petition being issued, the wife can make an urgent application for interim maintenance to ensure the she is in receipt of sufficient funds on a monthly basis to meet the monthly expenses for herself and for any dependent children. The interim maintenance will usually be paid until the conclusion of the finance proceedings which will take place within either the divorce or judicial separation proceedings.
If the wife does not have the financial resources to obtain legal advice because of the financial eligibility criteria and cutbacks to legal aid, a legal services funding order (LSFO) can be applied for. This is an order made against her husband to fund her legal fees should he have the financial resources to do so amongst other factors. Although legal aid is still available in domestic violence cases, eligibility will depend on the financial status of the one applying for legal aid. Furthermore, if legal aid is granted for injunction proceedings, it might not be extended to cover an application to deal with the financial aspects within judicial separation or divorce proceedings.
A LSFO can be obtained in matrimonial proceedings which involve an application for financial relief. The court may make an order or orders requiring a party to the marriage to pay to the other an amount to allow the applicant to obtain legal services for the purposes of the proceedings. The applicant has the right to instruct a solicitor of choice.
However, the court must not make an order unless it is satisfied that without the amount, the applicant would not reasonably be able to obtain appropriate legal services for the purposes of the proceedings or any part of it. The court must also be satisfied that the applicant is not reasonably able to secure a loan to pay for the services. Furthermore, that she is unlikely to be able to obtain the services by granting a charge over any assets likely to be recovered in the proceedings.
The original version of this article was published by Anthony Gold. Although it is intended that the above summarises some parts of the law it is not a precise statement of the law. The above article does not constitute legal advice and no liability is accepted in respect of any loss caused by reliance on the same.